# Shiksha Prachar Tatha Prasar Samiti & Anr v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 1055
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-04
- **Case number:** Spl. Appeal No. 490 of 2021
- **Bench:** Rakesh Srivastava, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiksha-prachar-tatha-prasar-samiti-anr-v-state-of-u-p-ors-46465
- **Pages:** 6

## Headnote

against interlocutory order - Maintainability -
Interlocutory orders which finally decide a
question or issue in controversy in the main
case or which finally decide a collateral issue or
a question which is not the subject-matter of
the main case, are "judgments" for the purpose
of filing appeals under the relevant rules of the
High Court. Orders passed by the Court which
are
of
a
routine
nature
would
not
be
"judgments"
even
if
they
cause
some
inconvenience to the parties. (Para 6)

In the present case, the order dated 01.11.2021,
against which the present appeal has been preferred, is
merely of a procedural nature and cannot in any
manner be said to touch the merits of the controversy
or the dispute between the parties so as to be deemed
to have been issued in exercise of powers conferred
u/Art. 226 of the Constitution. It is open to the
appellant to raise his grievance before the Single Judge
before whom the matter is to be taken up as per the
direction of the learned Single Judge. (Para 11)

Appeal dismissed. (E-4)

Precedent followed:

## Text

11 All. Shiksha Prachar Tatha Prasar Samiti & Anr. Vs. State of U.P. & Ors.
1055
appropriate circumstances and no exception can
be taken to such course of action. Similarly
under the Service Rules, there may be provision
for extension of service after the attainment of
the age of superannuation and it is well settled
that in the event of refusal by an employer to
grant an extension, the employee cannot
justifiably claim to be deprived of any right or
privilege. The view taken is that the employer
has a discretion to grant or not to grant such
extension having regard to the interest of the
employer or the establishment. This view is
expressed by this Court in the Case of State
Bank of Bikaner and Jaipur and Ors. vs. Jag
Mohan Lal (AIR 1989 SC 75). In this case, at
para 12, this Court observed as follows :

"13. ...The Bank has no obligation to extend
the services of all officers even if they are found
suitable in every respect. The interest of the
Bank is the primary consideration for giving
extension of service. With due regard to
exigencies of service, the Bank in one year may
give extension to all suitable retiring officers. In
another year, it may give extension to some and
not to all. In a subsequent year, it may not give
extension to any one of the officers. The Bank
may have a lot of fresh recruits in one year. The
Bank may not need the services of all retired
persons in another year. The Bank may have
lesser workload in a succeeding year. The
retiring persons cannot in any year demand that
"extension to all or none". If we concede that
right to retiring persons, then the very purpose
of giving extension in the interest of the Bank
would be defeated. We are, therefore, of opinion
that there is no scope for complaining
arbitrariness in the matter of giving extension of
service to retiring persons.""

19. The discussion made above leads to the
conclusion that the appellant retired from service
on 30.6.2009 after attaining the age of
superannuation 01.01.2009. He was awarded the
National
Award
to
Teachers-2008
on
05.09.2009, i.e, after his retirement from service.
Thus, at the time of his retirement, he was not in
service. There is no provision for extension of
service of a teacher after his retirement from
service or extension of service with retrospective
effect. Thus, once the contract of service has
come to an end, then no extension of service can
be accorded. Therefore, denial of extension of
service of the appellant/ petitioner does not
deprive him of his any fundamental rights
guaranteed under the Constitution or any of his
statutory rights. A government servant has no
right to continue in service after his retirement
from service. The appellant / petitioner having
retired from service much before the grant of
National Award for Teachers to him, has no
right for extension of service.

20. Learned counsel for the appellant has
miserably failed to show any illegality or
manifest error in the impugned judgment passed
by the learned Single Judge.

21. No other point has been raised by the
learned counsel for the appellant.

22. For all the reasons aforestated, the
present intra-court appeal lacks merit and is,
therefore, dismissed.

23. Cost made easy.
----------
(2021)12ILR A1055
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.12.2021

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.
THE HON'BLE VIVEK VARMA, J.

Spl. Appeal No. 490 of 2021

Shiksha Prachar Tatha Prasar Samiti & Anr.
 ...Appellants
Versus
State of U.P. & Ors. ...Respondents
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Anu Pratap Singh

Counsel for the Respondents:
C.S.C., Pawan Kumar Pandey, Sharad Pathak

A. Practice and Procedure - Intra-Court Appeal
against interlocutory order - Maintainability -
Interlocutory orders which finally decide a
question or issue in controversy in the main
case or which finally decide a collateral issue or
a question which is not the subject-matter of
the main case, are "judgments" for the purpose
of filing appeals under the relevant rules of the
High Court. Orders passed by the Court which
are
of
a
routine
nature
would
not
be
"judgments"
even
if
they
cause
some
inconvenience to the parties. (Para 6)

In the present case, the order dated 01.11.2021,
against which the present appeal has been preferred, is
merely of a procedural nature and cannot in any
manner be said to touch the merits of the controversy
or the dispute between the parties so as to be deemed
to have been issued in exercise of powers conferred
u/Art. 226 of the Constitution. It is open to the
appellant to raise his grievance before the Single Judge
before whom the matter is to be taken up as per the
direction of the learned Single Judge. (Para 11)

Appeal dismissed. (E-4)

Precedent followed:

1. Shah Babulal Khimji Vs Jayaben D Kania & anr.,
(1981) 4 SCC 8 (Para 6)

2. Midnapore People's Coop. Bank Ltd. & ors. Vs
Chunilal Nanda & ors., (2006) 5 SCC 399 (Para 7)

3. Usha Devi & ors. Vs St. of U.P. & ors., Special
Appeal Defective No. 1124 of 2021 (Para 8)

4. St. of U.P. Vs Kumari Renu Tiwari, 1993 (2)
UPLBEC, 1325 (Para 9)

5. Ashutosh Shrotriya & ors. Vs Vice-Chancellor, Dr.
B.R. Ambedkar University & ors., 2015 (8) ADJ 248
(Para 10)

Present Special Appeal challenges order dated
01.11.2021, passed by learned Single Judge.
(Delivered by Hon'ble Rakesh Srivastava, J. &
Hon'ble Vivek Varma, J.)

1. Heard Sri Anu Pratap Singh, learned
counsel for the appellants, Sri Amitabh Rai,
learned Additional Chief Standing Counsel for
respondent nos. 1 and 2, Sri Pawan Kumar
Pandey, learned counsel for respondent nos. 3
and 4 and Sri Shashank Pathak, Advocate
holding brief of Sri Sharad Pathak, learned
counsel for respondent nos. 6 to 18.

2. The present special appeal has been filed
seeking to challenge the order dated 1.11.2021
passed by the learned Single Judge in Writ
Petition No. 25379 (M/S) of 2021 (Rama Kant
Pandey and others v. Principal Secretary.
Institutional finance, Lucknow & Ors.).

3. A preliminary objection has been raised
by the learned counsel for the respondents with
regard to maintainability of the special appeal. It
has been contended that the order under
challenge in this appeal does not decide the
rights of the parties and as such, the same cannot
held to be a judgment for the purposes of filing
an intra Court appeal. He further submits that the
appellant has filed a stay vacation application
along with counter affidavit in the present writ
petition and the said application is stated to be
listed on 6.12.2021.

4. Learned counsel for the appellant by
referring to the merits of the case has contended
that the present special appeal is maintainable.

5. In order to appreciate the rival
contentions, we deem it necessary to set out the
impugned order dated 1.11.2021 passed by the
learned Single Judge against which the present
special appeal has been preferred. The order
dated 1.11.2021 reads as under:

"The petitioners' names were included in
the list of members of the General Body of the
11 All. Shiksha Prachar Tatha Prasar Samiti & Anr. Vs. State of U.P. & Ors.
1057
Society registered for the year 2017 and 2018
with the office of the Deputy Registrar, Firms
Societies and Chits. Now, by the impugned
order dated 28.07.2021, the said list that was
registered under Section 4B of the Societies
Registration Act, has been revised. It has
excluded the petitioners names. The list of 201718 relates to members of the General Body of
the Society known as Shiksha Prachar Tatha
Prasar Samiti, Village Babhnan, Post Sugar Mill
Babhnan, District Gonda, carrying a total of 78
members, including the petitioners. The list that
has now been drawn up and made part of the
impugned order dated 28.07.2021, passed by the
Deputy Registrar, Firms Societies and Chits,
carries 45 names excluding the petitioners.

The submission of learned counsel for the
petitioners is that once a list of members is
registered, the name of its members cannot be
excluded on any ground whatsoever without
hearing the members whose name is proposed to
be excluded. It has been asserted in paragraph
Nos. 50 and 51 of the writ petition that the
impugned orders have been passed by the
Deputy Director, Firms Societies and Chits, in
collusion with opposite party Nos. 4 and 5,
without providing any opportunity of hearing to
the petitioners.

Mr. Virendra Singh, learned Standing
Counsel accepts notice on behalf of respondent
Nos.1 and 2. Mr. Pawan Kumar Pandey, accepts
notice on behalf of respondent No.5. Learned
Standing Counsel and Mr. Pandey, appearing on
behalf of the respondents submits that the earlier
list was got illegally registered by unauthorized
persons on the basis of sham elections and that
before passing the impugned order, Kashi Prasad
Mishra, Vipin Kumar Mishra, Brij Bihari Mishra
and Shalini Mishra, respondent No.5, were
heard.

Prima facie, the impugned order has been
passed without opportunity of hearing. Reliance
in this connection has been placed by the learned
counsel for the petitioners on the decision of this
Court in Shiv Narain Agarwal and Others Vs.
State Of U.P. Thru. Prin.Secy. Institutional
Finance, Lko. & Ors, Miscellaneous Single
No.16656 of 2021 decided on 06.08.2021, where
opportunity of hearing before removal of the
name of a member of the General Body has been
held to be an essential requirement of the
exercise of power to amend the list of members
of the General Body.

Issue notice to respondent Nos.3, 4 and 6.

Steps be taken by RPAD, returnable on
09.11.2021.

List
this
petition
for
admission
on
01.12.2021.

Order
on
Civil
Misc.
Application
No.143707 of 2021

Issue notice.

Until further orders, operation of the
impugned
orders
dated
28.07.2021
and
26.08.2021,
(Annexure
Nos.
1
and
2,
respectively) passed by the Deputy Director,
Firms Societies and Chits, Ayodhya Division
Ayodhya shall remain suspended."

6. The question as to whether an intra
Court appeal would be available against an
interlocutory order or not, has been considered
by the Supreme Court in the case of Shah
Babulal Khimji v. Jayaben D. Kania and
another, (1981) 4 SCC 8, and it was held that
interlocutory orders which finally decide a
question or issue in controversy in the main case
or which finally decide a collateral issue or a
question which is not the subject matter of the
main case, are "judgments" for the purpose of
filing appeals under the relevant rules of the
High Court. The law laid down by the Supreme
Court in Shah Babulal Khimji (supra) is to the
effect that orders passed by the Court which are
of a routine nature would not be "judgments"
even if they cause some inconvenience to the
parties.

7. In Midnapore Peoples' Coop. Bank Ltd.
and others v. Chunilal Nanda and others, (2006)
5
SCC
399, the
Supreme
Court again
1058 INDIAN LAW REPORTS ALLAHABAD SERIES
emphasised that routine orders which are passed
to facilitate the progress of the case till its
culmination in the final judgment are not to be
held as "judgments" for the purposes of filing
intra-court appeals. It was also held that orders
which may cause some inconvenience or some
prejudice to a party but which do not finally
determine the rights and obligations of the
parties, would not amount to "judgments".

8. The view taken by the Apex Court in the
case of Shah Babulal Khimji (Supra) was
followed by the Division Bench of this Court in
Usha Devi and others vs. State of U.P. and
others (Special Appeal Defective No.1124 of
2007). The Court said as under :

"However, in our view, this appeal is not
maintainable. The Hon'ble Single Judge while
permitting the respondents to file counter
affidavit has granted an interim order till the
next date of listing. Neither the rights of the
parties have been adjudicated finally nor any
issue has been decided. When an order can be
construed as a "judgment" whereagainst a
special appeal under Chapter-VIII Rule 5 is
maintainable has been considered repeatedly in
catena of cases by this Court time and again.
Earlier while Letters Patent appeal under Clause
15 was maintainable against the judgment of the
Hon'ble Single Judge, the question as to when an
"order" would be a "judgment" came up for
consideration before a full Bench in the case of
Shital Din and others Vs. Anant Ram, 1993
A.L.J. 127 (FB) and it held as under:-

".......on a reading of several clauses of
the Letters Patent of the High Court we have
come to the conclusion that a final decision,
which effectually disposes of the appeal before
the High Court, should amount to a judgment,
whether it amounts to a decree or not."

The Apex Court in the case of Shah Babulal
Khimji Vs. Jayaban D. Kania and another, AIR
1981 SC, 1786 while dealing with an appeal
from a suit for specific performance of a
contract considered the question as to whether
under clause 15 of the Letters Patent, special
appeal would be maintainable. In the said case
the plaintiff sought an interim relief of
appointment of a Receiver on the suit property
during the pendency of the suit. The learned
Single Judge dismissed the application seeking
interim relief. The plaintiff filed special appeal
under clause-15 of the Letter Patent, which was
dismissed as not maintainable. The Apex Court
while reversing the judgment of the appellate
court, classified judgments in three categories:-

a) Final judgment

b) Preliminary judgment

c) Intermediary or interlocutory judgment.

It was also held by the Apex Court where a
proceeding finally terminates after adjudication
of all the issues or some of the issues the
adjudication is a judgment. The adjudication is
also a judgment, even though it does not result
in termination of proceedings, if it possesses the
characteristics and trappings of a judgment. An
order may possess such characteristics and
trappings when the order adversely affects a
valuable right of the party by deciding an
important aspect of the trial in an ancillary
proceeding.

The Apex Court in para-119 at page-1817
also held as under:

"(1 ) That the trial Judge being a senior
court with vast experience of various branches
of law occupying a very high status should be
trusted to pass discretionary or interlocutory
orders with due regard to the well settled
principles of civil justice. Thus, any discretion
exercised or routine orders passed by the trial
Judge in the course of the suit which may cause
some inconvenience or, to some extent,
prejudice one party or the other cannot be
treated as a judgment otherwise the appellate
court (Division Bench) will be flooded with
appeals from all kinds of orders passed by the
trial Judge. The courts must give sufficient
allowance to the trial Judge and raise a
presumption that any discretionary order, which
11 All. Shiksha Prachar Tatha Prasar Samiti & Anr. Vs. State of U.P. & Ors.
1059
he passes, must be presumed to be correct unless
it is ex facie legally erroneous or causes grave
and substantial injustice.

(2) That the interlocutory order in order to
be a judgment must contain the traits and
trappings of finality either when the order
decides the questions in controversy in an
ancillary proceeding or in the suit itself or in a
part of the proceedings."

9. The said view was followed by another
Division Bench in the case of State of U.P Vs.
Kumari Renu Tiwari,1993(2) UPLBEC,1325
and the following propositions were laid down:

"(1) When the term "judgment" is used in a
Statute or rule linked with the term "decree" as
defined in the Code of Civil Procedure, it will
have a restricted and narrow meaning but when
it is not so linked, it will have a wider
connotation;

(2) ordinarily for an adjudication to be a
"judgment" it should bring about termination of
the proceeding in which the adjudication is
made; and

(3) an order passed on an application for
interim relief is ordinarily not a "judgment" but
it will qualify to be called ''judgment' if it affects
valuable right of the party or decides an
important aspect of the trial and the effect of the
order on the party concerned is direct and
immediate rather than indirect and remote"

The same view was taken by the Division
Bench in Special Appeal No. 1247 of 2005
(Musafir Singh vs. Shiv Ram Yadav and others)
decided on 20.10.2005.

We have also followed and taken the same
view in Special Appeal No. 1247 of 2005,
Musafir Singh Vs. Shiv Ram Yadav and others
decided on 20.10.2005. A similar contention has
also been dispelled by this Court in Special
Appeal No. 1288 of 2006 Rajendra Singh
Bhadauriya Vs. Committee of Management &
others decided on 6.11.2006. Moreover, after
perusing the relief sought by petitionerrespondent no. 5, we are not convinced that the
interim order passed by the Hon'ble Single
Judge can be treated to have granted any final
relief to the petitioner-respondent no. 5."

10. Similar controversy came up before a
Full Bench of this Court in the case of Ashutosh
Shrotriya and others v. Vicc-Chancellor, Dr.
B.R. Ambedkar University and others, 2015 (8)
ADJ 248, wherein the matter was considered in
detail and the law was finally laid down to the
effect that an order of a learned Single Judge
upon a petition under Articles 226 or 227 of the
Constitution only calling for counter and
rejoinder affidavits is merely a procedural order
in aid of the progression of the case. An order of
this nature which is purely of a procedural
nature in aid of the progression of the case and
to enable the Court to form a considered view
after a counter affidavit and a rejoinder are filed
would not be amenable to a special appeal under
Chapter VIII Rule 5. Such an order does not
decide anything nor does it have the trappings of
finality. If a party to the proceedings seeks to
press an application for ad interim relief of a
protective nature even before a counter affidavit
is filed, on the ground that a situation of
irretrievable injustice may result or that its
substantive rights would be adversely affected in
the meantime, such an argument must be
addressed before the Single Judge. If such an
argument is urged, it would be dealt with
however briefly, consistent with the stage of the
case, by the Single Judge. It is for the Division
Bench hearing the special appeal to consider
whether the order decides matters of moment or
is of such a nature that would affect the vital and
valuable rights of the parties and causes serious
injustice to the concerned party.

11. In the facts of the present case the
order dated 1.11.2021, against which the present
appeal has been preferred, is merely of a
procedural nature and cannot in any manner be
said to touch the merits of the controversy or the
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
dispute between the parties so as to be deemed
to have been issued in exercise of powers
conferred under Article 226 of the Constitution.
It is open to the appellant to raise his grievance
before the Single Judge before whom the matter
is to be taken up as per the direction of the
learned Single Judge.

12. In view of the aforementioned facts
and circumstances, the preliminary objection
raised with regard to maintainability of the
special appeal under the provisions of Chapter
VIII Rule 5 of the Allahabad High Court Rules,
1952, is sustained.

13. The special appeal is held to be not
maintainable and is accordingly dismissed.
----------
(2021)12ILR A1060
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.11.2021

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE JASPREET SINGH, J.

Spl. Appeal No. 98 of 2021

Madhusoodan ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Mr. Anand Prakash Pandey

Counsel for the Respondents:
Mr. Manjiv Shukla, Addl. C.S.C.

A. Service Law - Appointment - Concealment -
Pendency of criminal case - Allahabad High
Court Rules, 1952 - Chapter VIII Rule 5 - It
could not be disputed that the application form did
not require the appellant to disclose pendency of any
criminal proceedings. All what the application required
was to disclose whether the appellant had been
convicted of any offence or not and in the instant
case, the appellant has not been convicted by any
competent court in respect of any offence. Also, till
such time the application form was filled and the
affidavit was furnished by the appellant, he was not
served with summons of the criminal case, hence the
affidavit of the appellant stating to the best of
his knowledge that he has not been convicted
by any court of law, cannot be said to be a
statement which was incorrect or suffered from
any concealment. (Para 9 to 11, 14, 15)

Hon'ble Court after noticing the dictum of the Apex
Court in the case of Sandeep Kumar's case (infra) as
well as Avtar Singh's case (infra) held that it was not
open for the Authorities to have taken a different
view on the same set of facts. Also, for the reason
that once the learned Single Judge in its judgment
dated 05.08.2019 had already noticed that the case
of the appellant was covered by the judgment of
Avtar Singh's case (infra), (Para 8, 16)

Appeal allowed. (E-4)

Precedent followed:

1. Avtar Singh Vs U.O.I. 2016, (2016) 8 SCC 471
(Para 5)

2. Commissioner of Police & ors. Vs Sandeep Kumar,
(2011) 4 SCC 644 (Para 12)

Present Special Appeal challenges order dated
20.01.2021, passed by learned Single Judge as
well as order dated 31.08.2019, passed by
respondents.

(Delivered by Hon'ble Jaspreet Singh, J.)

1. The instant intracourt appeal has been
preferred under Chapter VIII Rule 5 of
Allahabad High Court Rules, 1952 assailing the
order dated 20.01.2021 passed by the learned
Single Judge in Writ Petition No.33715 (S/S) of
2019 (Madhusoodan Vs. State of U.P. & others).

2. In order to appreciate the controversy
involved, certain brief facts giving rise to the
instant appeal are being noticed hereinafter.

3. The appellant had applied for the post of
Police Constable in the Uttar Pradesh Police in